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Segall on the Meaning-Application Distinction
Chris Green

Eric Segall at Dorf on Law presents again an argument he has run many times before: the idea that acknowledging the distinction between meaning and application (or sense and reference, as I would put it) opens the door to exactly the same considerations that living constitutionalism would allow. He writes:

Originalism may be part of our law but so are a host of other factor, some of which most originalists would agree are relevant, such as stare decisis and mistakes of fact by those who wrote and ratified the Constitution and and its amendments. The latter category of considerations, expressly accepted by noted originalists Lawrence Solum, Ilya Somin, and Christopher Green, as I've written before, gives the whole game away. If judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning, that level of discretion, which can only be exercised off the page of written texts or prior decisions, will inevitably implicate the personal experiences and values of judges in a way that simply cannot be explained by resort to formal legal materials.

One initial confusion here is the distinction between the original textually-expressed meaning itself, which most (but not all!) interpreters think is relevant, and originalism, the thesis that original meaning is binding whenever we are interpreting the Constitution as such. It's a category mistake to say that originalism is part of our law if original meaning is not binding. Those who think original meaning can be overridden by other considerations don't subscribe to originalism, and they therefore wouldn't say that originalism is part of the law. They can agree that original meaning itself can be a defeasible part of our law.  But not originalism.

But this slip is less important than Segall's discussion of mistakes of fact. If the text expresses a general category, filling in the applications of that term will require finding facts of a particular kind. Population categories in the text (e.g., "according to their respective numbers" in Article I, section 2, clause 3) require population facts. It's easy to identify framer errors on this sort of thing; the interim rules game North Carolina fewer representatives than Maryland, despite the fact, as it turned out once we counted in 1790, that North Carolina had more people. Other terms will require an assessment of sociological or moral facts; as I read the history, the term "privileges or immunities of citizens of the United States" requires both. As I put it many years ago (see here at 585), "Only the text can answer what sorts of errors should cause us to abandon adherence to the paradigm case, for only the sense expressed in that text determines which facts are the reference-yielding facts."

No (first-order) originalist thinks that "judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning." An originalist thinks that the original meaning is binding. That's what it means to be an originalist. And a meaning-application-distinguishing originalist like me (and most other originalists too) doesn't think that interpreters today decide which facts matter and which facts don't matter. The original meaning of the text does that. But people applying the binding, fixed meaning to situations today decide the fact themselves. 

In short, Segall confuses the non-bindingness of original applications (which most originalists today acknowledge) with the non-bindingness of original meaning (which [first-order] originalists by definition reject). And he confuses the ability to find facts with the ability to decide which facts matter

Distinguishing meaning from application, or sense from reference, doesn't "give[] the whole game away." I've frequently used mathematical terminology to make this distinction clear, and it's worth doing again. Meaning determines a function from possible facts to outcomes. If the outcome doesn't depend on the facts, it's a constant function. If the outcome depends on the facts, it's a non-constant function, i.e., a term that has a sense-reference or meaning-application gap. But the size of the gap will vary depending on the term. Just because a function is non-constant does not mean that it is "surjective" or "onto." A surjection is a function that reaches any possible outcome in the codomain for some possible input. For instance, seen as functions from real numbers to real numbers, y=x^3 is surjective, because all real numbers have a real cube root. But y=x^2 is not, because the squares of real numbers are never negative.

If our constitutional terms in context express surjective functions, then those who apply them will be able to reach any outcome they desire if they use the appropriate factual input. Of course, they won't always be able to get away with making up facts, but a surjective function would allow those facts to be relevant: given the right facts and constitutional terminology expressing a surjective function, we can get to any outcome we like. But if our constitutional terminology has a limited range of possible referents--i.e., its meaning expresses a non-constant but also non-surjective function--then those who apply constitutional categories will still face limitations, even though they might be in a position to find the relevant facts. The power to find relevant facts, in short, isn't the same as the power to make facts relevant.

Update (8/27): Segall responds with quotations from Larry Solum, referring to changed "outcomes," and from Ilya Somin and Ilan Wurman, referring to changed "applications." I of course say similar things myself regularly; indeed Ilan cites me at this point in his book. The whole point of a meaning/application distinction is that changes in outcomes or applications are distinct from a "departure from original meaning." I'll quote Euclid v. Ambler Realty: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. ... [A] degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles..."

Update (8/28): In response to a proposal from Evan Bernick, Eric concedes, I think, my main point: "Chris, true, no originalist thinks that judges have discretion to choose which facts are made relevant by the text, but that’s exactly what judges have done and will continue to do because realism is true." Later on, alas, he claimed that it was only a joke.